Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD212571, Kerry Wells, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Shelby Ricardo Springfield of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), and battery of a significant other (Pen. Code, § 243, subd. (e)(1)). The jury also found true allegations Springfield had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 668, 1170.12) and three prior prison convictions (Pen. Code, §§ 667.5, subd. (b), 668). In addition, Springfield pleaded nolo contendere to unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)).
The trial court sentenced Springfield to nine years in prison. The sentence consisted of the upper term of three years for the evading an officer conviction, doubled for the prior strike conviction, plus one year for each of the three prior prison convictions, and concurrent terms of 180 days each for the battery on a significant other and unlawful taking and driving a vehicle convictions.
Springfield appeals, contending the prosecutor violated his right of self-representation by suggesting his self-representation was evidence of guilt. In addition, Springfield contends the prosecutor committed multiple acts of misconduct that deprived him of his constitutional due process rights. Springfield also contends the trial court improperly relied on his prior convictions to both enhance his sentence and impose the upper term. We conclude there is no merit to these contentions and affirm the judgment.
We confine our summary to the facts underlying Springfield's convictions for evading an officer with reckless driving and battery of a significant other. The facts underlying Springfield's conviction for unlawful taking and driving a vehicle occurred separately and are not relevant to any issue raised on appeal.
Prosecution Evidence
Jordanna Kidd sat in the driver seat of a parked car. The car's engine was running and the driver's side door was open. Springfield, her boyfriend, stood beside the car. The two started arguing and he started punching her. She tried to get into the passenger's seat and go out the other door. Thinking Springfield was going to kill her, she grabbed a pair of cuticle scissors off the floor of the car, intending to poke his hand with them to make him stop. He grabbed for the scissors with one hand and started choking her with the other hand. She screamed, "Please stop. Get off me. Get off me." Springfield had also choked Kidd a few weeks earlier because she said something he did not like.
City of San Diego Police Officer Alex Nezgodinsky was driving in the area in a marked patrol car and heard Kidd screaming, "Help me. Help me. Don't hit me. Don't kill me." Nezgodinsky also heard a male voice yelling, "I will f---ing kill you." Nezgodinsky drove around the corner and saw Springfield sitting in the driver seat of a car with the driver's side door open. Springfield's body was twisted toward Kidd. He was leaning over her while punching her in the face and head.
Nezgodinsky approached the car, identified himself as a police officer, and told Springfield to stop hitting Kidd. Springfield continued punching Kidd. Nezgodinsky drew his gun and tried to pull Springfield out of the car. Springfield shut the door and told Nezgodinsky, "Don't f---ing touch me." Springfield then put the car in gear and drove away with Kidd.
Nezgodinsky got into his patrol car, turned on the lights and siren, and followed Springfield. Springfield drove approximately 25 to 30 feet and then slowed down at a corner. Kidd opened the passenger door and jumped out of the moving car onto the pavement.
After checking on Kidd, Nezgodinsky continued following Springfield. The pursuit started across the street from an elementary school and continued for approximately 4.5 miles at varying speeds between 20 and 70 miles per hours. During the pursuit, Springfield drove through a residential area with speed limits between 25 and 35 miles per hour, past two other elementary schools, through at least two red lights, and through six or seven stop signs. Nezgodinsky testified the pursuit occurred on a weekday morning and there was traffic in the area that had to get out of Springfield's way. Nezgodinsky did not notice whether there were any children or buses in the area. After approximately three minutes, a police lieutenant called off the pursuit because it was occurring in a residential neighborhood with schools.
Kidd had cuts, abrasions, and scrapes on her elbows and knees from jumping out of the car. She had a swollen lip and marks around her neck from the struggle with Springfield.
Kidd has three theft-related convictions. In addition, at the time of the incident, she was feeling paranoid from using cocaine and being awake for several days. However, she testified this did not affect her perceptions or her ability to recall what happened.
Defense Evidence
Springfield represented himself and testified in narrative form. He stated that three weeks before the incident, gang members had mugged and stabbed him nine times with a knife he had been carrying. He had only been out of the hospital for a few days when the incident with Kidd occurred, and he was still receiving trauma counseling.
On the day of the incident, he had been drinking and Kidd was "spun out of her head." He had dropped Kidd off and was using her car to give one of her friends a ride somewhere when Kidd called him and asked him to come back and get her. He went back to get her and started arguing with her friend. Meanwhile, Kidd got into the car. When Springfield's argument with Kidd's friend ended, Springfield told Kidd to move over to the passenger seat and he got into the driver's seat of the car. He and Kidd started to argue. She pulled out a pair of scissors from her purse and came at him with them. He wrestled with her and beat her hand to get the scissors away from her. After he got the scissors away from her, he pushed her back.
About then, he felt someone touch his shoulder. He thought it was Kidd's friend returning. He turned around and saw a person with a gun. He swung at and hit the person. Then, he ducked down, threw the car in gear, and sped off. He simultaneously realized the person was a police officer. He decided he was "committed" at that point and believed the officer would "beat on" him or he would be "blasted" if he stopped, so he kept "mashing out." As he slowed for a corner, Kidd jumped out of the car. The pursuit continued. Springfield told the jury, "I just couldn't stop. You know, if I'd stopped, there's no telling what would have happened, you know. Once they start chasing you, you know, it's no easy way out of the car. You know, I did what I had to do to stay alive."
During the prosecutor's cross-examination of him, Springfield acknowledged rolling through stop signs, but he denied driving through school zones or stoplights. He admitted having a 1991 conviction for evading an officer, and a 1999 conviction for evading an officer with reckless driving. He also admitted having prior convictions for voluntary manslaughter, and for making criminal threats to his wife.
DISCUSSION
I
Violation of Right of Self-Representation
A
Background
Pretrial Discussion of Jail Attire
Right after this case was assigned to the trial court, the court inquired of Springfield, "[T]he first thing I notice is you do not appear to be in street clothes. Do you have street clothes you wanted to wear for purposes of your trial?" Springfield replied, "No, Your Honor."
The court explained, "You understand if you wanted to you could wear street clothes, just wear regular pants and a shirt. You don't have to be dressed out in jail blues... I'd certainly give you the opportunity to make some arrangements, have somebody bring you some clothes so that you can wear some street clothes in front of the jury if you want." After indicating he would call somebody to bring some, Springfield stated, "[I]t's not really a big issue because I'm not on the street. And the clothes they supply you here—they look like you're homeless. So I'd rather just look like I'm in jail than look homeless..." He continued, "If I don't make arrangements to get my own personal clothes—which I'm having difficulty with—then I'll just wear jail clothes. It really doesn't matter."
After further assuring him he could wear street clothes during the trial and encouraging him to arrange to get some, the court stated, "If you prefer to just be in your jail clothes, then we'll let you be in your jail clothes, but I think I need to perhaps talk to the jury about that. I don't want the jury to hold the fact that you're in custody against you in any way. Okay?" Springfield replied, "Okay. Yes. Thank you."
The trial court then stated it would assume Springfield was going to take care of getting street clothes unless he decided not to do so. Springfield acknowledged this, "Correct, yes. I hadn't planned to because I was in custody. There was no need – there was no need to pretend." The court clarified, "Okay. So you had not planned to?" Springfield confirmed, "I had not planned on it."
After attending to other pretrial matters, the parties revisited the issue of Springfield's attire. The prosecutor informed the court that Springfield's investigator had said Springfield "repeatedly denied any request for dressout. The Private Conflict Counsel office had offered on numerous occasions to get him clothing and have him dressed out and prepare the appropriate paperwork. However, [Springfield] had denied those numerous requests."
The court asked Springfield, "[I]s that correct, Mr. Springfield? Sounds like you don't want to be dressed out." Springfield responded, "No, not the clothes they have, no." The court then indicated, "Okay. I am going to tell the jury that you're obviously in some jail clothes, that you have a right to be in street clothes if you want and you have declined and decided to be in jail clothes. I don't want the jury to think that we're forcing you to be in jail clothes." Springfield replied, "Okay."
Preliminary Jury Instructions
As part of its preliminary instructions, the trial court instructed the jury generally: "What attorneys say during the course of the trial is not evidence. An attorney will obviously take an active role in the trial, as well as Mr. Springfield acting as an attorney, which includes making opening statements, questioning witnesses, making objections, and arguing the case to you at the conclusion of the evidence. But unless they are sworn and take the witness stand, while they are acting as attorneys, they are not witnesses, so you must not consider as evidence any statements or remarks that they make during the trial unless sworn."
In addition, the trial court instructed the jury: "An attorney's question to a witness is not evidence. Questions are significant only as they help you to understand the witness's answer, but it is the answer that is the evidence, not the question. Do not assume something is true just because one of the attorneys asks a question that suggests it's true."
The trial court also instructed the jury: "When an attorney makes an objection to a question and I sustain the objection, the witness will not be permitted to answer, and you must ignore the question. Do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose."
Prosecutor's Opening Statement Remarks About Springfield's Attire
During his opening statement, the prosecutor told the jury, "[T]his case is about choices, choices that are thought through; that are made deliberately, willfully. And they were made by the defendant. [¶] When the defendant gets jealous, for example, he resorts to violence. When the defendant doesn't want to be arrested, he chooses to run from the police. [¶] When the defendant is presented here to you, he chooses to be as you see him. [¶] When you hear all the facts of this case, you'll understand that the choices that he makes are calculated, they're purposeful." (Emphasis added.) Although Springfield objected to other remarks in the prosecutor's opening statement, he did not object to these remarks.
Prosecutor's Questions About Springfield's Self-Representation and Attire
After Springfield testified, the prosecutor began his cross-examination as follows:
"[PROSECUTOR]: So you had the opportunity to have a lawyer in this case; right?
"[SPRINGFIELD]: Yes.
"[PROSECUTOR]: And, in fact, you've had a lawyer in previous parts of this case.
"THE COURT: Counsel, that's irrelevant.
"[PROSECUTOR]: You choose to represent yourself; is that true?
"[SPRINGFIELD]: Yes.
"[PROSECUTOR]: You've had the choice to have jail clothing, not be how you are presented to the jury; is that true?
"[SPRINGFIELD]: Yes.
"[PROSECUTOR]: You've had
"[SPRINGFIELD]: What's the relevance?
"THE COURT: Well, let's just set the ground rules here. Right now he asks the questions; you answer
"[SPRINGFIELD]: Okay.
"THE COURT: – and let me make the legal rulings. [¶] So I'm going to sustain—let's move on to the facts of this case."
Jury Instruction Conference Discussions
During the jury instruction conference, the trial court indicated it was going to instruct the jury to disregard and not consider Springfield's custody status and jail attire for any purpose. The court additionally admonished the prosecutor, "I believe it's inappropriate for you to comment on the fact that the defendant is representing himself. He has a constitutional right to represent himself. And for you to ask the jury to draw negative inferences from his exercise of that choice is constitutional error, and that's why I stopped you in your cross-examination. It's not a fact that should be presented or argued. I think it's very dangerous of you to do that." The trial court continued, "And because you've done that, both in your opening statement and started to in your cross-examination, I'm going to instruct the jury something in that regard."
The prosecutor explained that the purpose of his questioning and his opening statement remarks was to keep Springfield from using his jail attire and self-representation to garner sympathy. The trial court responded, "All right. And I have instructed them... on that at the very beginning, that they're not to have any sympathy for him in that regard. I don't think that it's something that's the subject of further comment on behalf of the People because of the danger that you are suggesting, some negative inference that he's the type of person that likes to control all situations and that's why he's making this choice. That's the way it comes across to me in your comments. So if it comes across that way to me, it's possible it comes across that way to the jury, and I want to avoid that because I think that would be inappropriate."
The court subsequently indicated it was going to instruct the jury that "the defendant has a constitutional right to represent himself. The fact that the defendant is representing himself should not enter into your deliberations in any way. You must completely disregard the circumstance in deciding the issues in this case." The court inquired, "Is that acceptable to you, Mr. Springfield?" Springfield responded, "Yes, Your Honor." The court then ordered the prosecutor not to comment on Springfield's self-representation during closing arguments.
Preclosing Argument Jury Instructions
Before the parties' closing arguments, and consistent with the jury instruction conference discussions, the trial court instructed the jury, "The fact that the defendant is presently in custody and wearing jail clothes is not evidence. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
The trial court further instructed the jury, "The defendant has a constitutional right to represent himself. The fact that the defendant is representing himself should not enter into your deliberations in any way. You must completely disregard this circumstance in deciding the issues in this case."
B
Analysis
Springfield contends the prosecutor's comments and questions about his jail attire and his self-representation violated his constitutional right of self-representation. We conclude Springfield forfeited this contention by failing to object on this basis below. We further conclude that any error was harmless beyond a reasonable doubt.
1
Generally, the prosecution may not comment adversely on or invite the jury to infer guilt from a criminal defendant's exercise of a constitutional right because doing so penalizes the defendant for exercising the right. (Griffin v. California (1965) 380 U.S. 609, 614 [right not to testify]; People v. Guzman (1988) 45 Cal.3d 915, 947-948, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [right to testify]; People v. Wood (2002) 103 Cal.App.4th 803, 808-809 [refusal to consent to warrantless entry]; People v. Schindler (1980) 114 Cal.App.3d 178, 187-188 [right to retain counsel of choice].) Although the parties have not cited to and we have not located any California decisions applying this prohibition to a defendant's right of self-representation, we cannot conceive of a justification for treating this right differently. Moreover, we note other jurisdictions presented with challenges to prosecution comments on the right of self-representation have applied the prohibition to this right. (See, e.g., State v. Moreno (2006) 132 Wash.App. 663, 672-673; Hawkins v. State (Tex. Crim. App. 1981) 613 S.W.2d. 720, 727-729.)
(a)
To preserve a claim that a prosecutor improperly commented on the defendant's exercise of a constitutional right, the defendant must object to the prosecutor's comments on this basis. (See People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Medina (1995) 11 Cal.4th 694, 756.) Here, Springfield never objected to the prosecutor's opening statement comments on his jail attire, and he objected only to the relevance of the prosecutor's questions about his jail attire and self-representation. Further, when the trial court pointed out the potential constitutional issue during the jury instruction conference, Springfield did not request a mistrial or otherwise argue the prosecutor's comments and questions irreparably harmed him. Instead, when the trial court proposed a curative instruction to address any potential harm, Springfield indicated the instruction was acceptable to him. Accordingly, we conclude Springfield failed to preserve his constitutional claim for appeal.
Referencing isolated portions of the record, Springfield argues we should excuse his failure to properly object during the trial because the trial court dissuaded him from making objections. We do not believe the portions of the record referenced by Springfield show or even suggest any dissuasion by the trial court. Moreover, after reviewing the entire record, we conclude the trial court was commendably conscientious in its efforts to ensure Springfield received a fair trial, including affording him the opportunity to make and be heard on appropriate objections.
(b)
Notwithstanding Springfield's forfeiture, we agree the prosecutor's comments and questions, at least to the extent they relate to Springfield's self-representation, were improper. Contrary to the People's assertion, the prosecutor was not entitled to question Springfield about his decision to represent himself to dispel any perception of unfairness in the proceedings. Whether trial court proceedings are fair is a question of law. (People v. Lawrence (1959) 168 Cal.App.2d 510, 519.) The jury has no role in deciding questions of law. (Pen. Code, § 1124, 1126.) If a prosecutor is concerned a jury may be tempted to consider improper factors in its deliberations, the prosecutor should raise the concern with the trial court outside the presence of the jury. The trial court can then decide how best to address the concern, which may include giving the jury additional instructions.
Furthermore, as the trial court noted, the prosecutor's comments and questions, considered in the context of the prosecutor's case theme, arguably invited the jury to infer guilt from Springfield's decision to represent himself. Whether done intentionally or unintentionally, this is constitutionally impermissible.
1
Nonetheless, we conclude the prosecutor's comments and questions were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The prosecutor's comments and questions were isolated and brief. The jury knew from the trial court's preliminary instructions that the prosecutor's comments and questions were not evidence. In addition, the trial court sustained Springfield's relevance objection and otherwise clearly indicated to the jury the prosecutor's questions about self-representation and jail attire were not pertinent. To ensure no prejudice to Springfield from the prosecutor's comments and questions, the trial court sua sponte instructed the jury to disregard any references to Springfield's jail attire or self-representation. We presume the jury understood and applied these instructions. (People v. Butler (2009) 46 Cal.4th 847, 873.) We, therefore, conclude there is no reasonable possibility the prosecutor's comment and questions about Springfield's jail attire and self-representation contributed to the jury's verdicts. (People v. Lewis (2006) 139 Cal.App.4th 874, 887.)
II
Prosecutorial Misconduct
In addition to the comments and questions about his jail attire and self-representation, Springfield contends the prosecutor committed multiple acts of egregious misconduct, which violated his federal and state due process rights. We address each act separately applying the following well-established standards:
" ' " ' " 'A prosecutor's... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " [Citations.]' [Citation.]" (People v. Redd (2010) 48 Cal.4th 691, 733-734.)
A
Improperly Informing the Jury of Extraneous Facts
1
At some point after the incident, both Kidd and Springfield were in jail and exchanged letters. Kidd visited Springfield after she got out. During these contacts, they discussed the incident and Kidd wanted an apology from Springfield. The prosecutor asked Kidd, "Did he ever actually apologize to you?" Kidd responded, "Yes, he did."
The prosecutor then asked her, "What did he tell you?" Kidd responded, "I'm not really sure, but it was—he explained—or I don't know I should say 'explain.' But, yes, he apologized and said he never meant for that to happen."
The prosecutor asked her if Springfield had apologized for choking her a few weeks before the incident. She replied, "Yeah, he did."
During his cross-examination of Springfield, the prosecutor asked Springfield about the letters:
"[PROSECUTOR]: And, in fact, you even wrote her letters apologizing for having to choke her in the past, didn't you?
"[SPRINGFIELD]: No, I did not. No, I did not.
"[PROSECUTOR]: You wrote her letters apologizing not only for this incident
"[SPRINGFIELD]: No.
"[PROSECUTOR]: —but for the incident previous.
"[SPRINGFIELD]: No, no.
"[PROSECUTOR]: You wrote her letters trying to explain your behavior.
"[SPRINGFIELD]: Apologizing that I didn't have everything set up when she got out, that I didn't have a nice place, that she—that she wound up still going into places she have. I didn't have all that when she got out. That's what I apologized for and her winding up getting caught back up in that life. That's what I apologized for.
"[PROSECUTOR]: You didn't cross-examine her on any of that, did you, when you had the opportunity.
"[SPRINGFIELD]: I wasn't trying to dog her out anymore.
"[PROSECUTOR]: You never asked her a single question about your own apologies for having choked her, did you?
"[SPRINGFIELD]: She never even—she didn't say anything about apologizing for choking her. Don't put words that weren't there."
2
Springfield contends the prosecutor committed misconduct through his cross-examination questions because they improperly informed the jury of a fact not in evidence—that the letter contained an explicit apology for choking Kidd. Springfield has forfeited this contention.
" 'To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm.' [Citation] The objection must be made on the same ground upon which the defendant now assigns error. [Citation.]" (People v. Redd, supra, 48 Cal.4th at pp. 733-734.)
Here, Springfield did not object to and seek an admonition for the prosecutor's questions on the ground they introduced facts not in evidence. We have no basis to conclude an objection and an admonition would have failed to cure any perceived harm. Accordingly, we conclude Springfield did not preserve this contention for appeal.
Even if Springfield had not forfeited this contention, we conclude it lacks merit. A prosecutor may ask a witness questions suggesting the existence of facts harmful to the defendant if the prosecutor has a good faith belief that the witness will answer the questions in the affirmative, or that the prosecutor can prove the facts if the witness denies their existence. (People v. Mooc (2001) 26 Cal.4th 1216, 1233-1234.) As the parties do not dispute the existence of the letters, we may surmise the prosecutor had a good faith belief he could prove their contents. (Id. at p. 1234.) Therefore, we conclude the prosecutor's questioning of Springfield was not misconduct.
B
Using Extraneous Facts to Corroborate a Witness's Testimony
1
A police officer testified he took a report from Kidd on the day of the incident; however, he did not testify about the contents of the report. Kidd testified she gave statements to at least two officers. The prosecutor asked her, "And the statements that you provided to those officers—are those essentially what you told us here in court as far as [the incident] is concerned?" She replied, "Yes." She also indicated she was testifying from memory and had not reviewed the police reports prior to her testimony. Springfield did not cross-examine her about her statements or attempt to impeach her with them. During closing arguments, the prosecutor stated to the jury, "there was no cross-examination by [Springfield] that [Kidd] was making up stories for you that she didn't tell [the police officer who took a report from her]." Springfield objected to the prosecutor's statement as misleading and argumentative. The trial court instructed the jury that attorney arguments are not evidence and the parties could be argumentative in closing. The prosecutor then stated, "Ladies and gentlemen, check your memory, check your notes. Were there questions on cross-examination of [the police officer]? Was he asked about the statement that he took from [Kidd]? What were his responses?"
2
Springfield contends the prosecutor's remarks were misconduct because they referenced the contents of the police officer's report, which was not in evidence, and impermissibly suggested the report corroborated Kidd's testimony. Springfield further contends the remarks violated his right of confrontation as, absent testimony about the contents of Kidd's statements to the police officer, he had no basis to cross-examine either Kidd or the police officer about them.
Springfield has forfeited these contentions because he did not object to the prosecutor's remarks on these grounds. (People v. Redd, supra, 48 Cal.4th at pp. 733-734.) Even if Springfield had not forfeited these contentions, we conclude they lack merit. "A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record. [Citations.]" (People v. Martinez (2010) 47 Cal.4th 911, 958.) The prosecutor's remarks did not offend this rule. The remarks do not reference any particular facts or otherwise invite the jury to base its verdict on such facts. Instead, the remarks draw the jury's attention to Springfield's failure to attempt to impeach Kidd by cross-examining a witness about the statements she made after the incident. Such remarks are within the prosecutor's wide latitude to describe deficiencies in defense tactics. (People v. Redd, supra, 48 Cal.4th at pp. 735-736; People v. Bemore (2000) 22 Cal.4th 809, 846.)
Furthermore, the contents of Kidd's statements to the police officer were at least indirectly in evidence because she specifically testified that her trial testimony matched her statements. Springfield had an opportunity to cross-examine Kidd and the police officer about her statements, and her consistency claim gave him a basis for doing so. Accordingly, we conclude the prosecutor's remarks did not violate Springfield's right of confrontation.
Even if the prosecutor's remarks had been improper, we conclude the error was harmless. The court's instructions informing the jury that the parties' questions and arguments are not evidence precluded any reasonable likelihood the jury applied the prosecutor's remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.)
C
Misstating Evidence - Scissors
1
Kidd testified she used a pair of "little cuticle scissors" to defend herself from Springfield. Springfield testified Kidd used a pair of "scissors, " apparently implying they were regular size or at least larger than cuticle scissors.
Although the record could be clearer on this point, our interpretation of Springfield's testimony is supported by one of his proffered bases for his proposed self-defense and necessity instructions. Specifically, he explained to the trial court "[S]ome scissors—some barber shears have shrunk down to become nail clippers now, and that's not what was there."
During the prosecutor's cross-examination of Springfield, the prosecutor asked him, "Isn't it true that Ms. Kidd never had a pair of scissors, as you describe them, and started to attack you?" (Emphasis added.) Springfield responded, "No." The prosecutor pressed, "Isn't that true?" Springfield insisted, "No, that is not true."
The prosecutor continued, "You heard Ms. Kidd testify yesterday; right?" Springfield acknowledged, "I sure did." The prosecutor asked, "You heard her say that it wasn't a pair of scissors but a pair of cuticle clippers or nail clippers; right?" Springfield replied, "Yes, I heard her say that."
The prosecutor subsequently began referring to Springfield's version of the implement as "scissors" and Kidd's version of the implement as "cuticle cutters." He also used these descriptions in the same manner during his closing argument.
2
Springfield contends the prosecution's use of the descriptions "cuticle clippers" and "nail clippers" during his cross-examination of Springfield and his use of the description "cuticle cutters" in his closing argument constituted prejudicial misconduct because these descriptions misstated the evidence. Springfield has forfeited this contention because he did not object to the prosecutor's questions and remarks on this ground. (People v. Redd, supra, 48 Cal.4th at pp. 733-734.)
Even if Springfield had not forfeited this contention, it plainly lacks merit. The prosecutor's alternate descriptions of the implement preserved an important distinction between Kidd's version of events and Springfield's version. Consequently, we conclude the prosecutor's questions and remarks fairly reflected the trial evidence and were not misconduct. Further, we conclude the court's instructions informing the jury that the parties' questions and arguments are not evidence precluded any reasonable likelihood the jury applied the prosecutor's remarks in an objectionable fashion. (People v. Morales, supra, 25 Cal.4th at p. 44.)
D
Misstating Evidence – School in Session
1
Nezgodinsky testified that his pursuit of Springfield started across the street from an elementary school and went past two other elementary schools. Following up on that testimony, the prosecutor asked Nezgodinsky, "That day, was it a weekend or was it a weekday for school children?" Nezgodinsky replied, "It was a weekday." The prosecutor then asked, "Did you notice whether there were any children or school buses out on the route?" Nezgodinsky replied, "I didn't notice that, no." However, Nezgodinsky testified there was traffic in the area that had to get out of Springfield's way.
Springfield did not cross-examine Nezgodinsky on these points. Although Springfield denied driving through school zones, he did not present any evidence, as he has on appeal, that school was not in session on the day of the incident because of a state holiday.
After filing his opening brief, Springfield filed a motion requesting we take judicial notice of the fact that, on the day of the incident, the public schools were closed in observance of Martin Luther King, Jr. Day. The Attorney General's office filed a letter stating it did not oppose the motion. We granted the motion.
Commenting on this evidence, the prosecutor stated in his closing argument that Springfield "willfully sped on surface streets in a residential area where school was in session." The prosecutor further stated Springfield "drove with willful or wanton disregard for the safety of persons and property...Willful and wanton disregard is... the very picture of how the defendant drove that day: running the stop signs; running the red lights; speeding up to 70 miles per hour in the residential area; speeding in the school zones; as Officer Nezgodinsky said, having to have other people on the road avoid the defendant's driving." Springfield did not attempt to counter any of these points in his closing argument.
2
Springfield contends the prosecutor's closing argument remarks about him speeding through school zones while school was in session constitute prejudicial misconduct because it misstates the evidence. Springfield has forfeited this contention because he did not object to the prosecutor's remarks on this ground. (People v. Redd, supra, 48 Cal.4th at pp. 733-734.)
Even if Springfield had not forfeited this contention, we conclude it lacks merit. The prosecutor's remarks fairly reflected the trial evidence. Moreover, there is no indication the prosecutor actually knew school was not in session on the day of the incident. To the contrary, the prosecutor's questioning shows an effort to determine that very point, and the responses he received created a reasonable inference school was in session. While the inference was inaccurate, we cannot fault the prosecutor for misstating evidence that was never presented on points never challenged.
Further, even if the prosecutor had misstated the evidence on this point, we conclude the error was harmless because of the court's admonitions and instructions informing the jury the parties' questions and arguments are not evidence. In addition, although Springfield disputed some of the details, Springfield did not dispute he evaded an officer with reckless driving. Instead, his defense was that he was justified in doing so to avoid being killed. Consequently, we conclude there is no reasonable likelihood the jury applied the prosecutor's remarks in an objectionable fashion. (People v. Morales, supra, 25 Cal.4th at p. 44.)
E
Exploiting Procedural Mistakes
1
After their testimony, Kidd and Nezgodinsky remained subject to recall. The other officer to whom Kidd made statements was not subject to recall. When it came time to present his case, Springfield indicated he would not be his first witness. The trial court asked who his other witnesses were and Springfield replied, "we were supposed to be recalling Kidd and the police." The court explained, "No. They were subject to recall. That doesn't—that doesn't mean that we are recalling them. If you wanted to call them as a witness, you needed to arrange to have them here."
Since Kidd had already testified, the court asked Springfield, "What else do you want to ask her about?" Springfield replied, "I was going to ask her about the scissors. I needed to question her about the scissors." He also wanted to ask her about some ancillary matters. The court explained that he had already had the opportunity to question her about the scissors and other matters when she testified. The court asked him why he had not done so and he said, "At that time, it wasn't my turn to put on my defense." The court explained, "It was your turn to go into any issues that were already being raised..." Springfield then acknowledged he "blew putting [on Kidd]—or questioning [Kidd] properly...."
The trial court told Springfield it was not indicating he could not put on his defense, it just wanted to clarify what evidence Springfield intended to elicit from her. Springfield responded by stating he would pass on calling Kidd. He explained, "At this point I don't—I think I can go with the testimony as it is because it's—there's not too much variance."
Springfield subsequently testified and the prosecutor asked him several questions about his failure to cross-examine Kidd on key points, including the scissors. Springfield twice explained he thought he was going to be able to call her as a witness that day. The prosecutor also asked Springfield about his failure to cross-examine Nezgodinsky on key points. Springfield replied that he had reserved the right to recall the officer.
As detailed in part II.B.1, ante, in the prosecutor's closing argument, he discussed Springfield's failure to cross-examine the police officer who took a report from Kidd.
2
Springfield contends the prosecutor's questions and remarks about his failure to cross-examine witnesses constituted "deceptive or reprehensible" misconduct because the prosecutor was exploiting a procedural mistake to persuade the jury he lacked evidence to support his defense. Springfield has forfeited this contention because he did not object to the prosecutor's questions and remarks on this ground. (People v. Redd, supra, 48 Cal.4th at pp. 733-734.)
Even if Springfield had not forfeited this contention, we conclude it plainly lacks merit as to the prosecutor's closing argument remarks about Springfield's failure to cross-examine the police officer who took Kidd's report. Springfield did not ask the officer a single question and did not request he be subject to recall. Therefore, the prosecutor was not exploiting a procedural mistake by commenting on Springfield's failure to cross-examine the officer.
We also conclude the contention lacks merit as to the prosecutor's questions about Springfield's failure to cross-examine Kidd and Nezgodinsky on key points. As we have previously noted, the prosecutor has wide latitude to address deficiencies in defense tactics. (People v. Redd, supra, 48 Cal.4th at pp. 735-736; People v. Bemore, supra, 22 Cal.4th 809, 846.) Moreover, by questioning Springfield about his failure to cross-examine witnesses on key points, instead of merely commenting on it in closing argument, the prosecutor gave Springfield an opportunity to explain himself, which he briefly did. In addition, Springfield could have elaborated on his explanation in his redirect narrative, but he did not. We have difficulty fathoming how a prosecutorial tactic that allows a defendant a reasonable opportunity to explain his position to the jury can be fairly characterized as "deceptive or reprehensible." Accordingly, we conclude the prosecutor's questions were not misconduct.
Even if the prosecutor's questions were improper, we conclude the error was harmless. The trial court's instructions informing the jury that the parties' questions and arguments are not evidence precluded any reasonable likelihood the jury applied the prosecutor's questions and remarks in an objectionable fashion. (People v. Morales, supra, 25 Cal.4th at p. 44.)
III
Dual Use of Prior Convictions for Sentencing
In deciding Springfield's sentence for the evading an officer conviction, the trial court found there were no mitigating circumstances and, therefore, the aggravating circumstances outweighed the mitigating circumstances. The trial court also found Springfield was a career criminal with a criminal history dating back to 1979 that included theft, violence, drugs, driving under the influence, and domestic violence. Based on these factors, the trial court imposed the upper term of three years.
Springfield contends his criminal history consists primarily of his prior strike and prior prison convictions, which the trial court did not dismiss. Consequently, Springfield contends the trial court improperly used his prior convictions to both impose the upper term and to enhance his sentence. We conclude there is no merit to this contention.
The sentencing court cannot use a prior conviction both to impose an upper term and to enhance a sentence. (People v. McFearson (2008) 168 Cal.App.4th 388, 391-395; Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420, subd. (c).) In this case, however, the trial court imposed an upper term sentence based on Springfield's entire criminal history, which includes offenses other than those charged as enhancements. This does not constitute an impermissible dual use of facts. (See People v. Mendoza (1986) 183 Cal.App.3d 390, 403; People v. Roberson (1978) 81 Cal.App.3d 890, 894, disapproved on another ground in People v. Crowson (1983) 33 Cal.3d 623, 632.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., AARON, J.